MXP v The State of Western Australia - [2010] WASCA 215

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MXP -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 215

CORAM: McLURE P
BUSS JA
MAZZA J

HEARD: 21 JULY 2010

DELIVERED : 29 OCTOBER 2010

FILE NO/S: CACR 182 of 2009

BETWEEN: MXP
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law - Sentencing - Drug offence - Appellant convicted of possession of a prohibited drug with intent to sell or supply it to another - Appellant cooperated with law enforcement agencies - Discount for cooperation - Inadequate information provided to the sentencing judge as to the appellant's cooperation - The duties of the Director of Public Prosecutions and an offender's legal representative in placing all relevant information before a sentencing judge concerning the offender's cooperation with law enforcement agencies - Sentence imposed on the appellant manifestly excessive in the context of the appellant's cooperation in combination with his fast-track plea of guilty and other mitigating features - Appellant re-sentenced

Legislation:

Nil

Result:

Appeal allowed
Appellant re-sentenced

Category: D

Representation:

Counsel:

Appellant: Mr A E Eyers
Respondent: Mr J McGrath

Solicitors:

Appellant: Andrew Maughan & Associates
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

A Child v The State of Western Australia [2007] WASCA 285
Barany v The Queen [2000] WASCA 240; (2000) 114 A Crim R 426
Bazzi v The State of Western Australia [2007] WASCA 195
Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49
Coleski v The State of Western Australia [2008] WASCA 260
Darwell v The Queen (1997) 94 A Crim R 35
F v The Queen [2005] WASCA 135
Guy v The Queen [2004] WASCA 9; (2004) 143 A Crim R 428
LJP v The State of Western Australia [2010] WASCA 85
Ly v The Queen [2007] NSWCCA 28
MA v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349
R v Baldock [2010] WASCA 170; (2010) 269 ALR 674
R v Gallagher (1991) 23 NSWLR 220
R v Olbrich [1999] HCA (1999) 54; (1999) CLR 270
Swains v The State of Western Australia [2007] WASCA 251
The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119
The State of Western Australia v Higgins [2008] WASCA 157
The State of Western Australia v Toothill [2007] WASCA 236
Ziino v The State of Western Australia [2007] WASCA 222; (2007) 177 A Crim R 297

McLURE P: This is an appeal against sentence. The facts are set out in the confidential annexure to the reasons of Buss JA. It is sufficient for present purposes to note that the appellant was convicted on his fast‑track plea of guilty of one count of being in possession of MDMA with intent to sell or supply.
The appellant was in possession of a very significant quantity of tablets at a relatively high level of purity. He was a relatively young man with no prior record. He was sentenced to more than 6 years' imprisonment.
The appellant relied on two grounds of appeal. First he claims the sentence is manifestly excessive and secondly, that the sentencing judge erred in the way he approached and dealt with the appellant's cooperation with police. I agree with Buss JA that on the materials before the sentencing judge the sentence is not manifestly excessive. I propose to focus on the second ground.
It was apparent from the appeal papers that the sentencing judge was not provided with all relevant information concerning the nature and extent of the appellant's cooperation with police. The responsibility for that failure rests with the parties and their legal advisers.
The background is as follows. The appellant and his legal advisers had reasonable grounds for believing that for sentencing purposes the appellant was to be provided with a 'letter of comfort' from police identifying the nature and extent of the appellant's cooperation and its value to investigating authorities. On the day before sentencing, a representative of the DPP informed the appellant's counsel that a letter of comfort would not be forthcoming. The appellant was informed by the police officer who had undertaken to provide a letter of comfort that the officer in charge had declined to sign the letter because it did not comply with the DPP guidelines.
I infer that is a reference to the Statement of Prosecution Policy and Guidelines 2005 made under s 24(1) of the Director of Public Prosecutions Act 1991 (WA). The DPP guidelines (which applied at the time of sentencing and continue to apply) relevantly provide:
146.On occasions, an offender will have rendered such significant assistance to the WAP in an investigation as to warrant a letter from the WAP to the court advising the nature of the assistance.
147.In order to have substantial mitigating effect, the assistance should extend beyond the investigation of the criminal enterprise in respect of which the person has been convicted.
148.To ensure that the assistance merits the unusual action of a letter to the court, and the consequent effect on sentence, such letters may only be presented when sanctioned by the Director or Deputy Director who in turn will only accept such letters from the Commissioner, Deputy Commissioner, Assistant Commissioner (Crime) or District Superintendent or Assistant Commissioners North Metropolitan, South Metropolitan and Regional Western Australia, or their Federal counterparts.
Clause 147 does not accurately reflect the sentencing principles which the courts in this State apply in assessing the weight to be given to cooperation with investigating authorities. In particular, assistance relating to the investigation of the criminal enterprise in respect of which the person has been convicted can in appropriate circumstances have a substantial mitigating effect: A Child v The State of Western Australia [2007] WASCA 285; F v The Queen [2005] WASCA 135; LJP v The State of Western Australia [2010] WASCA 85.
The sentencing principles relating to cooperation are summarised in A Child v The State of Western Australia as follows:
A substantial discount is given to an offender who gives useful information or assistance to law enforcement authorities, irrespective of whether that demonstrates remorse or contrition. Where the information or assistance does demonstrate genuine remorse or contrition … the discount should be greater. The more potentially useful the information is to authorities, the greater should be the discount. Finally, any danger or hardship which the person assisting authorities may be placed in or may undergo as a result of co-operation should be taken into account. (citations omitted)
The considerations mentioned above reflect two underlying principles. One is that assistance to the authorities, and the offer of future assistance, may be one of the most unequivocal and practical demonstrations of genuine remorse and rehabilitation. The other is that there is a clear public interest in giving a significant discount, since it is to the advantage of ordinary law-abiding citizens that crime should be detected and successfully prosecuted.
The discount given to offenders should not be laid down as a standard percentage, but depends upon the circumstances of the individual case [11] ‑ [13]. (citation omitted)
Thus, discounts for cooperation can be given even when the information and assistance is of limited value (F v The Queen), and sometimes where it is of no value (Barany v The Queen (2000) 114 A Crim R 426 [23].
The appellant's counsel appeared to accept that the DPP guidelines defined the limits of the mitigatory effect of cooperation. They clearly do not. The sum total of the information provided on behalf of the appellant to the sentencing judge was as follows:
However, it is admitted and accepted by the DPP that he did provide assistance for the purposes of the authorities in relation to another investigation at which ‑ subsequently they relied upon that information and that person was subsequently arrested (ts 11).
The State's contribution was more opaque. Counsel said:
[I]n relation to the other matter adverted to, we accept what my learned friend has said but not in a significant way enough to generate correspondence (ts 18).
This was the unsatisfactory state of affairs confronting the sentencing judge. The information provided by the parties was at an unhelpfully high level of generality.
The appellant did not seek an agreed statement of facts relating to the nature, extent and value of his cooperation or, failing agreement, adduce evidence on the subject. Against that background, the sentencing judge sentenced the appellant on the inadequate factual basis with which he was presented by the parties. He said:
I also take into account that you have provided some information to the authorities in relation to the matter, but I am also very conscious of what has been said to me by counsel for the State and by counsel for you in relation to what you had done in that respect (ts 21).
The State took a hard line in its written submissions in response to ground 2. It's position was that if a letter of comfort was not provided to the court, the offender bore the onus of establishing the relevant facts in accordance with the principles in R v Olbrich (1999) CLR 270. If an assertion made by counsel for the defendant in mitigation is controverted by the prosecution or if the judge is not prepared to act on the assertion, it is necessary for the defendant to call evidence on the issue: Olbrich [25].
However, there are difficulties with the usual approach in relation to information of the type in issue in this case. First, the information is

ordinarily of a highly confidential nature, the disclosure of which may have the capacity to jeopardise the safety of the provider. Secondly, an offender is unlikely to be in possession of all information relevant to an assessment of its value to investigating authorities. These difficulties were acknowledged by the Director (not the signatory to the respondent's submissions) at the hearing of the appeal. In the absence of a letter of comfort (or its modern equivalent), the parties should attempt to agree a statement of facts in advance of the sentencing hearing.

The Director agreed that the appropriate course in this case was for the appeal to be adjourned to enable the parties to confer as to the appropriate means by which information concerning the nature and extent of the appellant's cooperation and its value to police could be placed before this court.
That information was subsequently provided to the court in a letter from an assistant commissioner of police. The letter includes an assessment of the level of the appellant's assistance by reference to a draft protocol between the DPP and the WA police concerning letters of recognition (formerly letters of comfort). The draft protocol is in fuller and wider terms than the DPP Guidelines.
The letter provided by police contains all the information necessary to enable this court to make an informed assessment of the weight to be given to the appellant's cooperation. That information enables the court to conclude that the appellant's cooperation demonstrates genuine remorse and contrition for the commission of the offence. Further, aspects of his cooperation are established to have been of material assistance to investigating authorities.
The additional information is a weighty sentencing consideration which the parties should have brought to the attention of the sentencing judge. As conceded by the Director, a letter of recognition should have been provided to the sentencing judge in this case. The appellant would suffer a miscarriage of justice if this oversight is not corrected on appeal.
I agree with Buss JA that the appeal should be allowed, the sentence set aside and in lieu thereof there be a sentence of 5 years' imprisonment which should be taken to have commenced on the day nominated by the sentencing judge.
BUSS JA: The appellant was convicted in the District Court, on his fast‑track plea of guilty, on one count in an indictment which alleged that he had in his possession a prohibited drug, namely MDMA, with intent to

sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).

The sentencing judge imposed a sentence in excess of 6 years' immediate imprisonment. A parole eligibility order was made.
The appellant appeals to this court against the sentencing decision.
The background facts and circumstances, the appellant's personal antecedents and those aspects which properly characterise the appellant's offending as serious are set out in the schedule to these reasons. The schedule will be the subject of a confidentiality order. It will not be published except to the appellant and the State and their respective legal representatives.

The ground of appeal

There are two grounds of appeal.
Ground 1 alleges that the sentencing judge erred in the exercise of his discretion by imposing a sentence that was manifestly excessive. Ground 2 alleges that his Honour erred in the exercise of his discretion by failing to give any consideration to the appellant's assistance to police.
On 2 March 2010, Owen JA granted leave to appeal on each of the grounds.

Ground 1: its merits without regard to the appellant's cooperation

It is convenient, first, to consider the merits of ground 1 without regard to the information provided by the appellant to police and his other cooperation with them.
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error.
It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness for offences of the kind in question, and the personal circumstances of the offender.
The maximum penalty for possession of a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act, is 25 years' imprisonment or a fine not exceeding $100,000 or both. See s 34(1)(a) of the Act.
It has been said repeatedly that the major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed solely for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be a very limited consideration, but they are not completely irrelevant.
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant in the present case, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. See The State of Western Australia v Higgins [2008] WASCA 157, where Steytler P (McLure & Miller JJA agreeing) said [19]:
As to customary sentencing standards, caution is needed when trying to determine the level of severity of a particular sentence by comparison with those imposed in other cases. That is because there will inevitably be differences in the circumstances of offenders and offences: Tulloh [46] (McLure J, Murray J concurring); Ziino v The State of Western Australia [2007] WASCA 222 [25] (Owen JA, Wheeler & Miller JJA concurring). However, it is helpful to determine whether a general range of sentences can be discerned for like offences by reviewing similar cases, in an attempt to achieve consistency in sentencing: Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 [12] (McLure JA); Ziino [25] (Owen JA, Wheeler & Miller JJA concurring).
Sentencing ranges of the kind discussed in Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49, The State of Western Australia v Toothill [2007] WASCA 236 and Swains v The State of Western Australia [2007] WASCA 251 can provide only general guidance. See Coleski v The State of Western Australia [2008] WASCA 260 [16].
The mere fact that an individual sentence is within the range of other sentences imposed for offences of the kind in question does not necessarily establish that no express or implied error has been made by the sentencing judge. Similarly, the mere fact that an individual sentence is outside that range does not necessarily establish that the judicial discretion has miscarried. See Ly v The Queen [2007] NSWCCA 28 [20] (Adams J, Howie & Price JJ agreeing); R v Baldock [2010] WASCA 170; (2010) 269 ALR 674 [147] (Buss JA). All of the matters referred to at [30] and [33] ‑ [34] above must be evaluated and synthesised in deciding whether an individual sentence is manifestly excessive or not.
In Higgins, Steytler P considered a number of cases involving MDMA:
In Atholwood v The Queen [2000] WASCA 76; (2000) 110 A Crim R 417, the court (Malcolm CJ, Wallwork & Anderson JJ) dealt with an offender who had been convicted, after trial, on one count of possession of methylamphetamine with intent to sell or supply, one of possession of amphetamine with intent to sell or supply and one of possession of MDMA with intent to sell or supply (current offences). The MDMA count involved 150 tablets amounting in all to some 36.78 g. The offender, whose age does not appear from the reasons of the court, was sentenced to a term of 6 years' imprisonment in respect of the methylamphetamine, 2 years' imprisonment in respect of the amphetamine and 3 years' imprisonment in respect of the MDMA. The sentences (which preceded the operation of the transitional provisions) were ordered to be served concurrently, but cumulatively upon a term of 2 years and 9 months' imprisonment then being served by the offender in respect of a charge of cultivating cannabis with intent to sell or supply (prior offence). However, after being sentenced by the trial judge and before his appeal against the sentences imposed in respect of the current offences was heard, the offender had successfully appealed against the sentence imposed in respect of the prior offence and that sentence was reduced to a term of 12 months' imprisonment. The appeal against the sentences imposed for the current offences subsequently failed when an application for an extension of time was refused.
In Sinagra-Brisca v The Queen [2004] WASCA 68, the court (Templeman, Wheeler & McLure JJ) was concerned with an offender who had been convicted, after pleading guilty on the fast-track, on two counts of possession of MDMA with intent to sell or supply and two counts of possession of methylamphetamine with intent to sell or supply. The first MDMA offence (count 1) involved more than 10,000 ecstasy tablets weighing 2.4 kg and having a purity of about 27%. The tablets had a street value of around $500,000. The second MDMA count (count 4) involved 55 tablets weighing about 14 g and having a purity of about 18%. The first of the methylamphetamine charges (count 2) involved 5.06 kg of methylamphetamine ranging in purity between 21% and 50%, with the majority of it (4.625 kg) having a purity between 46% and 50%. The second methylamphetamine count (count 3) involved 800 g of methylamphetamine with a purity ranging from 28% to 70%. The offender was sentenced (prior to the operation of the transitional provisions) to terms of 17 years and 6 months' imprisonment on each of counts 1 and 2, to a term of 3 years' imprisonment on count 3 (although the trial judge said that, were it not for totality reasons, he would have imposed a sentence of 7 years' imprisonment) and to a term of 3 years' imprisonment on count 4. The term imposed in respect of count 3 was ordered to be served cumulatively on that imposed on count 1 but the other sentences were ordered to be served concurrently with that term. The offender was liable to have five motor vehicles forfeited (they were worth $124,000) and also quantities of cash and jewellery. He had a gambling problem and had been a user of MDMA. He had a low average IQ as well as significant deficits in verbal cognitive skills. A psychologist suggested that the expense associated with his drug use, gambling and debt probably contributed to his decision to engage in drug dealing. His appeal against sentence was dismissed.
In Colangelo v The State of Western Australia [2004] WASCA 294, the offender had carried on a drug trafficking business. He was a middle‑range dealer. He was 23 years old. He pleaded guilty, albeit not on the fast-track, to three counts of possession of drugs with intent to sell or supply. Count 1 related to 53.32 g of methylamphetamine with a purity ranging from 9% to 48%. Count 2 related to 74 MDMA tablets, the purity of which was not stated. Count 3 related to 26.3 g of methylamphetamine with a purity of 37%. The offender was sentenced (after the transitional provisions had come into effect) to terms of 4 years' imprisonment in respect of count 1, 2 years' imprisonment in respect of count 2 and 2 years' imprisonment in respect of count 3. The first two terms were ordered to be served concurrently. The third was ordered to be served cumulatively upon the other two. The appeal against sentence (which asserted a breach of the totality principle) was unsuccessful.
In Olomi v The State of Western Australia [2004] WASCA 304, the court (Murray, Templeman & Miller JJ) was concerned with an application for leave to appeal against sentence brought by an offender who had pleaded guilty on the fast-track to two counts of possession of drugs with intent to sell or supply. The first count related to 247 MDMA tablets weighing 53.85 g (the purity of which was not stated). The second related to 64.48 g of methylamphetamine (also of an un-stated purity). The offender (whose age does not appear from the reasons) was in breach of parole when arrested in respect of these counts. He had 987 parole days to serve. The offences had been committed partially to fund the offender's drug habit but mainly to make a profit of $30,000. The applicant (who was sentenced after the coming into effect of the transitional provisions, as was the fact with the remaining cases to which I shall refer) was required to serve a term of 32 months' imprisonment on each count, to be served cumulatively. Leave to appeal was refused.
In F v The Queen (which, as I have said, was relied on by the sentencing judge) the offender was convicted, after pleading guilty, on one count of attempting to have in his possession some 1,000 ecstasy tablets with a gross weight of 241.5 g (65.1 g pure) which had been imported into Australia contrary to s 233B(1)(c) of the Customs Act 1901 (Cth). He had no relevant prior convictions and a good employment record. He had provided significant cooperation to the authorities. He had signed an undertaking to testify against a person based in the United Kingdom who had been involved in the importation of the drugs that had led to his conviction, if that person was to be extradited to Australia. He had also undertaken to provide evidence against a third person in Western Australia, relating to that person's alleged involvement in dealing with money believed to be the proceeds from the sale of drugs. He was sentenced to a term of 8 years' imprisonment with a non-parole period of 4 years. After a successful appeal, he was, as I have said, re-sentenced to a term of 5 years' imprisonment with a non-parole period of 2 1/2 years. I have earlier mentioned that this took into account his part co-operation and a deduction of 2 years from his head sentence (and 1 year from his non‑parole period) in respect of future cooperation.
In The State of Western Australia v Andela [2006] WASCA 77, the 21‑year-old offender had pleaded guilty on the fast-track to one count of possessing 500 MDMA tablets, weighing 138.5 g and having a purity of around 37% to 42%, with intent to sell or supply. The offender was in full-time employment. He had no prior convictions. He had good references. He had been addicted to cocaine and had committed the offence in order to finance his drug habit. The sentencing judge imposed a term of 2 years' imprisonment, suspended for 2 years. After a successful State appeal, the offender was sentenced to a term of 18 months immediate imprisonment. The court (McLure JA, with whom Roberts-Smith & Buss JJA agreed) described the term of 2 years' imprisonment as lenient, but said that it had not been challenged by the Crown. The reduction to 18 months' imprisonment was in order to give recognition to the element of double jeopardy.
In Samuels v The State of Western Australia (No 2) [2006] WASCA 222, the offender was convicted, after a trial, on one count of possession of methylamphetamine with intent to sell or supply and one count of possession of MDMA with intent to sell or supply. He had possessed 23.5 g of methylamphetamine with a purity of 34% and 315.8 g of MDMA with a purity of around 21%. He was 33 years old at the time of sentencing. He had no previous convictions for similar offences and had not offended in any way since December 2001. He was categorised as operating at a level of 'mid-level commerciality'. He was sentenced (surprisingly) to a term of 4 years' imprisonment in respect of the MDMA and to a term of 5 years' imprisonment in respect of the much smaller quantity of methylamphetamine. The sentence imposed in respect of count 2 was ordered to be served partly cumulatively upon that imposed on count 1, producing an aggregate of 6 years' imprisonment. His appeal against sentence was dismissed.
In Blay v The Queen [2006] WASCA 248; (2006) 205 FLR 414, the court (Wheeler, McLure & Buss JJA) dealt with an appeal against sentence by an offender who had pleaded guilty to three drug offences. The first of these (count 1) was an offence of aiding the importation into Australia of a quantity of MDMA, being not less than the trafficable quantity, contrary to s 11.2(1) of the Criminal Code 1995 (Cth) and s 233B(1)(b) of the Customs Act. The second and third (counts 2 and 3) were offences of possession of MDMA with intention to sell or supply.
Count 1 involved 1,975 MDMA tablets with a gross weight of 414.9 g and a relatively low purity of 5.4%. The net quantity of pure MDMA was 22.4 g. The offender had been party to arranging the importation of the MDMA tablets from the United Kingdom by air cargo to Perth International Airport. When the drugs arrived, they were sent to a specified address, where they were accepted by the offender's female acquaintance. The offender later took possession of the parcel from his acquaintance and opened it. This gave rise to count 2. He was arrested as he was leaving the premises with the open parcel on the back seat of his car. At the time of committing the offences the subjects of counts 1 and 2, the offender had been on parole for offences of selling prohibited drugs and possession of prohibited drugs with intent to sell or supply. Count 3 involved some 2,498 MDMA tablets with a gross weight of 461.7 g and a purity ranging between 25% and 32%.
The offender was 30 years old at the time of committing the offences. He had lived on the streets since the age of 14 and had become addicted to heroin at the age of 15. He had then entered upon a life of crime and drugs. He was sentenced, on count 1, to a term of 6 years' imprisonment with a non-parole period of 3 years. He was sentenced to a similar term in respect of count 2, to commence after he had served 2 years' imprisonment on count 1. On count 3 he was sentenced to a term of 8 years' imprisonment, to commence after he had served 4 years' imprisonment in respect of the first two counts. This gave rise to a total of 12 years' imprisonment. His appeal against sentence was successful. The court set aside the order that the term of 8 years' imprisonment commence after the offender had served 4 years in respect of the first two counts. In lieu, it ordered that the 8-year term was to commence after the offender had served 2 years in respect of the first two counts. This gave rise to a total effective sentence of 10 years' imprisonment.
In Vagh v The State of Western Australia [2007] WASCA 17, the offender was convicted on three counts of possession of a prohibited drug with intent to sell or supply. He was also convicted, pursuant to a notice under s 32 of the Sentencing Act 1995 (WA), of three minor offences. The first of the serious offences (count 1) related to 133.3 g of methylamphetamine with a purity ranging between 15% and 17%. The second (count 2) involved 58 LSD tablets. The third (count 3) involved 98 ecstasy tablets with a total weight of 30.65 g.
The appellant was 22 years old. He had no prior record. He had pleaded guilty to all three counts, although the pleas had not been made at the earliest opportunity and were not treated as fast-track pleas of guilty for the purposes of sentencing. He had supplied the 98 tablets at a cost of $2,350. He had not himself obtained any financial gain from that sale, although he had done so from other transactions. He was sentenced to terms of 3 years and 9 months' imprisonment on count 1, 1 year and 8 months' imprisonment on count 2 and 2 years and 1 month's imprisonment on count 3. The first two terms were ordered to be served concurrently. The third was ordered to be served cumulatively upon the first two. Terms of 2 months' imprisonment were imposed in respect of each of the offences the subject of the s 32 notice. These were ordered to be served concurrently with each other but cumulatively upon the term imposed on count 3. This gave rise to a total sentence of 6 years' imprisonment. The offender's appeal against sentence was dismissed.
In Burke v The State of Western Australia [2007] WASCA 210, the offender was convicted on one count of supplying MDMA (count 1), one count of possession of MDMA with intent to sell or supply (count 2) and one count of possession of methylamphetamine with intent to sell or supply (count 3). He pleaded guilty to counts 2 and 3 but was convicted on count 1 after a trial. He pleaded guilty, on a s 32 notice, to one count of not having a motor driver's licence and one count of possession of methylamphetamine. Count 1 involved 300 MDMA tablets weighing 73.2 g with a purity of 33%. Count 2 involved 200 MDMA tablets weighing approximately 49 g with a purity of 32%. Count 3 involved 27.89 g of methylamphetamine with a purity of between 11% and 46%.
At the time of his offending the appellant was 22 years old. He suffered from depression. He was sentenced, on count 1, to a term of 3 years and 4 months' imprisonment. On count 2 he was sentenced to a term of 1 year and 9 months' imprisonment to be served concurrently with the term imposed in respect of count 1. On count 3 he was sentenced to a term of 2 years' imprisonment to be served cumulatively upon that imposed on count 1. This gave rise to a total sentence of 5 years and 4 months' imprisonment. On the appeal, Wheeler JA (with whom the other members of the court agreed) said that, given the appellant's relative youth and good antecedents, the total sentence was one of 'significant length'. However, apart from correcting a mathematical error on the part of the sentencing judge (which resulted in a reduction of 2 months), the court declined to interfere.
In Ziino, the offender was convicted, after a trial, on two counts of supplying MDMA to another and one count of possession of MDMA. The first count (count 1) involved 55.26 g of MDMA with a purity of between 32% and 38%. The MDMA had a street value of around $9,900. The second count (count 3, count 2 having related to a co-offender) involved 199 MDMA tablets with a total weight of 54.9 g and a purity of around 37%. These tablets had an estimated street value of $9,950. The third offence (count 4) involved 4 g of MDMA.
The offender was 40 years old at the time of the offences. He was found to have been in the 'middle' level of the 'commercial drug hierarchy'. He was sentenced to a term of 6 years' imprisonment in respect of count 1. The sentencing judge said that the offender should receive a similar sentence on count 3 but, because of totality considerations, he was sentenced to a term of 1 year's imprisonment to be served cumulatively. On count 4 the sentencing judge imposed a further 12 months' imprisonment to be served concurrently with the other terms. This resulted in a total aggregate sentence of 7 years' imprisonment. Leave to appeal was refused.
In the course of reviewing some of the cases in his judgment in Ziino, Owen JA (with whom Wheeler & Miller JJA agreed) referred to Olomi as providing an example of the limited utility which particular decisions in previous cases provide. He said that, in that case, a substantial discount for the early pleas of guilty was given and the offender was treated 'very leniently'. He also remarked that the parties in Ziino had not disputed that a comparison with sentences imposed in heroin cases was appropriate and that those cases would suggest that the sentence imposed by the sentencing judge on count 1 was within the range of sentences that could have been expected. He also said [32] that the sentencing judge in Ziino had noted that MDMA is classified in the 'high category' of prohibited drugs due to the negative impact on the community of its use and trade. Leave to appeal was refused [20] ‑ [36].

The offender in Higgins was convicted, after a trial, of possession of MDMA with intent to sell or supply it to another. He was sentenced to a term of 4 years' imprisonment with eligibility for parole. This court allowed the State's appeal against sentence on the ground, relevantly, that it was manifestly inadequate. The offender had been in possession of a very significant quantity of MDMA for the purposes of sale. The tablets in question weighed 249 g and had a purity of 33%. They had a street value of about $50,000. Cash and drug paraphernalia found at the offender's home justified the conclusion that he was a 'high side mid‑level' dealer. He was motivated solely by personal profit, he did not plead guilty and he showed no remorse. There was little in mitigation other than his good antecedents (which, of course, carried little weight). Steytler P (McLure & Miller JJA agreeing) substituted a sentence of 5 years and 6 months' imprisonment, after allowing for the operation of the transitional provisions [124]. The traditional common law principles relating to Crown or State appeals applied [123].
Also, in Higgins, Steytler P examined the practice in Western Australia concerning MDMA offences. His Honour noted that since the decision of the Court of Criminal Appeal in Darwell v The Queen (1997) 94 A Crim R 35, each of methylamphetamine and MDMA has been categorised as being at 'the high end of the scale of seriousness in the hierarchy of prohibited drugs' and in the same category as heroin and cocaine. See Darwell (40) (Malcolm CJ, Kennedy & Franklyn JJ agreeing); Guy v The Queen [2004] WASCA 9; (2004) 143 A Crim R 428 [31] (Templeman J, Wheeler J & Wallwork AJ agreeing); Ziino v The State of Western Australia [2007] WASCA 222; (2007) 177 A Crim R 297 [32] ‑ [33] (Owen JA, Wheeler & Miller JJA agreeing). His Honour noted that this categorisation has not always been uniformly applied on his reading of the cases, although, even putting aside differences between offenders and offences, comparisons are not always able to be made because the purities of the drugs in question are not always stated [110]. His Honour added that where there are multiple offences, courts do not always approach the individual sentences in the same manner as they would if the offender was to be sentenced for one offence only [110]. A little later, his Honour concluded:
However, allowing for the limitations in this process of comparing cases, on my reading of them the cases seem generally to support the proposition that, since Darwell, MDMA has usually been treated as seriously, for the purposes of sentencing, as methylamphetamine, heroin and cocaine. That seems to me to be apparent from Sinagra-Brisca (where there were counts concerning both MDMA and methylamphetamine); Colangelo (MDMA and methylamphetamine); Olomi (MDMA and methylamphetamine); Vagh (methylamphetamine, LSD and MDMA) and (to some extent) Burke (MDMA and methylamphetamine) [111].
After evaluating expert and other evidence as to the deleterious effects of MDMA compared with other prohibited drugs, Steytler P held that the evidence (which he accepted) supported the proposition that there is no basis for any significant distinction, for sentencing purposes, between MDMA on the one hand and other prohibited drugs (such as methylamphetamine, amphetamine, heroin and cocaine) on the other. This was especially the case with respect to methylamphetamine [121].
In The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119, the offender was convicted, after a trial, on three counts of possession of methylamphetamine, three counts of possession of cannabis and three counts of possession of MDMA, in each case with intent to sell or supply it to another.
The quantity and purity of the drugs in question were as follows:
Count 1:142.2 g of methylamphetamine of 9% - 10% purity
Count 2:855.4 g of methylamphetamine of 8% - 13% purity
Count 3:50.4 g of cannabis
Count 4:133 g of cannabis
Count 5:353 g of cannabis
Count 6:About 3,000 MDMA tablets of total weight 665 g and 28% purity
Count 7:342 g of MDMA in powder form of 9% purity
Count 8:28.7 g of methylamphetamine of 19% - 33% purity
Count 9:31.77 g of MDMA of 28% - 30% purity.
Counts 1 to 7 were committed on 30 November 2004 and counts 8 and 9 on 17 May 2006. Counts 8 and 9 occurred while the offender was on bail for counts 1 to 7.
The offender was a commercial dealer in illicit drugs. There was no evidence that he was an addict. He was motivated by personal profit. The offender evinced no remorse. He was a man of mature years. His personal antecedents were, in general, reasonably good.
The sentencing judge imposed individual sentences of imprisonment, as follows:
Count 1:3 years 4 months
Count 2:6 years 8 months
Count 3:8 months
Count 4:8 months
Count 5:12 months
Count 6:5 years 4 months
Count 7:3 years 4 months
Count 8:16 months
Count 9:16 months.
His Honour ordered that the sentences for counts 1 to 7 be served concurrently with each other. He also ordered that the sentences for counts 8 and 9 be served concurrently with each other, but cumulatively on the sentence for count 2. In the result, the total effective sentence was 8 years' imprisonment. A parole eligibility order was made.
The State appealed against the sentencing decision. Section 41(4)(b) of the Criminal Appeals Act 2004 (WA) applied to the appeal and, in consequence, the traditional common law principles relating to Crown or State appeals did not apply.
A majority of this court (Buss & Miller JJA; Pullin JA dissenting) allowed the State's appeal. They set aside the sentences imposed by the sentencing judge for counts 1, 2, 6 and 7, and substituted sentences of imprisonment, as follows:
Count 1:5 years
Count 2:8 years
Count 6:7 years
Count 7:5 years.
The majority also set aside the sentences imposed for counts 8 and 9, and substituted a sentence of 3 years' imprisonment on each of those counts. The new sentences for counts 1 to 7 were ordered to be served concurrently with each other, and the new sentences for counts 8 and 9 were ordered to be served concurrently with each other, but cumulatively on count 2. The total effective sentence substituted on appeal was therefore 11 years' imprisonment. The offender remained eligible for parole.
In the present case, the sentencing judge gave careful consideration to the objective seriousness of the appellant's offending and the mitigating features. Those aspects which properly characterise the offending as serious are set out in the schedule to these reasons.
In my opinion, when the sentence in excess of 6 years' imprisonment is examined, without regard to the appellant's cooperation with police, the sentence was within the applicable range and reflected the need for appropriate punishment and personal and general deterrence. Although the sentence was severe, it was not plainly unreasonable or unjust from the perspective of the maximum available penalty, the customary standards of sentencing and the objective seriousness of the offence, after taking into account the appellant's good personal circumstances, but without regard to his cooperation.

Ground 1: its merits when proper regard is had to the appellant's cooperation

I turn now to consider the merits of ground 1 in the context of the information provided by the appellant to police and his other cooperation with them.
Counsel for the appellant at the sentencing hearing (who was not the appellant's counsel on this appeal) submitted to the sentencing judge:
During the course of lead‑up to this when I was briefed, I was advised clearly that a letter of reference was going to be provided to your Honour. It only transpired yesterday from an email from my friend that I was advised that that letter of - when I say a 'letter of reference', a letter of comfort, pardon me, was [not] going to be provided.
...
… my client provided some assistance to the authorities in relation to [an] investigation. That information was relied upon by the authorities.
There was at that stage an undertaking by the officer of this matter, which was Andrew Broadley, to provide a letter to him for supporting him for the purposes of sentencing relating to that investigation, but for this charge.
However, when that letter was provided to his officer in charge; that is, of his section, Andrew Broadley, the officer came back and said, 'Well, it doesn't comply with the DPP guidelines.' The DPP then contacted me yesterday and advised me of that position. However, it is admitted and accepted by the DPP that he did provide assistance for the purposes of the authorities in relation to another investigation at which - subsequently they relied upon that information and that person was subsequently arrested (ts 10 ‑ 11).
The prosecutor made this submission to his Honour in response:
[I]n relation to the other matter adverted to, we accept what my learned friend has said but not in a significant way enough to generate correspondence (ts 18).
A little later, the prosecutor reiterated that he accepted 'the position as put' by counsel for the appellant, but 'it's simply not significant enough to generate something in the usual form' (ts 18). His Honour said that he 'understood' (ts 18).
The sentencing judge made these remarks in the course of sentencing the appellant:
I also take into account that you have provided some information to the authorities in relation to the matter, but I'm also very conscious of what has been said to me by counsel for the State and by counsel for you in relation to what you have done in that respect (ts 21).
It is well‑established that substantial discounts in sentencing may be allowed to recognise the value of an offender's cooperation with law enforcement agencies. When deciding upon the appropriate level of discount in a particular case, the court must consider the value of the offender's cooperation and the risk to his or her personal safety, while ensuring that the discount does not result in a sentence which is, in all the circumstances of the offending and the offender, obviously inadequate or an affront to community standards. See R v Gallagher (1991) 23 NSWLR 220, 232, 234.
In MA v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349, Roberts‑Smith J (Steytler J agreeing) reviewed numerous authorities on discounts for cooperation with law enforcement agencies. His Honour summarised the principles he had extracted from the authorities, as follows:
1.A substantial discount must be given to an offender who gives useful information or assistance to law enforcement or assistance to law enforcement authorities irrespective of whether that demonstrates remorse or contrition. That is because of the public policy consideration of encouraging criminals to do so.
2.Where the information or assistance does demonstrate genuine remorse or contrition the discount should be greater.
3.The information or assistance does not have to have been effective in the law enforcement process, although the discount will be greater where it has been.
4.The greater the disclosure and the more potentially useful it is to the authorities, in the comprehension of the offender, the greater should be the discount [118].
In Bazzi v The State of Western Australia [2007] WASCA 195, Wheeler JA (Owen & Miller JJA agreeing) said that there is no 'tariff' for a discount for cooperation. The discount may, in particular circumstances, be very small. In other circumstances it may be as much as 50% or even more [26].
As Wheeler and McLure JJA noted in A Child v The State of Western Australia [2007] WASCA 285, the allowing of discounts in sentencing for cooperation with law enforcement agencies reflects two underlying principles:
One is that assistance to the authorities, and the offer of future assistance, may be one of the most unequivocal and practical demonstrations of genuine remorse and rehabilitation. The other is that there is a clear public interest in giving a significant discount, since it is to the advantage of ordinary law-abiding citizens that crime should be detected and successfully prosecuted [12].
It is for the sentencing judge (and not the Director of Public Prosecutions or the police, either individually or jointly) to determine, for sentencing purposes, the nature, extent and value of an offender's cooperation with law enforcement agencies and the appropriate level of any discount on his or her sentence. Plainly, a sentencing judge is unable properly to perform this function unless the Director of Public Prosecutions and the police have provided him or her with all relevant information. This information should, ordinarily, include details of:
(a)The facts and circumstances relating to the offender and his or her offending.
(b)Full particulars of the offender's past and promised future assistance and other cooperation.
(c)An evaluation by the Director of Public Prosecutions or the police of the value of the offender's past and promised future cooperation.
In the present case, the information provided to the sentencing judge was inadequate. It appears from the transcript of the proceedings before his Honour that counsel for the appellant had confidently expected until the day before the hearing that a 'letter of comfort' or a 'letter of recognition' would be provided by police to his Honour. That did not occur. The prosecutor accepted that the appellant had provided some assistance to the authorities, but nothing beyond that general statement was made available to his Honour. The submissions made by counsel for the appellant and the prosecutor on this issue were general, non‑specific and unhelpful.
When the appeal was argued, this court explained to counsel that the court required information from the Director of Public Prosecutions and police to enable it to understand what cooperation had been provided by the appellant and the value of that cooperation. The provision of this information was necessary to enable this court to form a view as to whether or not a different sentence should have been imposed by the sentencing judge. See s 31(4)(a) of the Criminal Appeals Act.
At the conclusion of the hearing, the court adjourned the appeal on the basis that the State would arrange for the court and counsel for the appellant to be provided with the requisite information. This occurred, and neither of the parties wanted a further hearing.
At all material times, the criteria relied on by the Western Australian police in determining their assessment of the level of assistance provided by an offender has been set out in a draft protocol between the Director of Public Prosecutions and the police concerning 'letters of recognition'. The criteria are, relevantly, these:
10.The level of assistance provided by an offender will be graded by WAP [that is, the Western Australian police] according to grades of support. The three grades of support identified by WAP are:
10.1Grade 1
10.1.1Provided significant information on a serious criminal offence (high level); and/or
10.1.2Performed an active role in assisting authorities; and/or
10.1.3Provided a witness statement or gives evidence.
10.2Grade 2
10.2.1Provided significant information on a serious criminal offence (mid to high level); and/or
10.2.2Performed tasks to assist authorities; and/or
10.2.3Provided a witness statement or gives evidence.
10.3Grade 3
10.3.1Provided information on a criminal offence (high level); and/or
10.3.2Performed tasks to assist authorities.
At all material times, the guidelines published by the Director of Public Prosecutions have read, relevantly:
146.On occasions, an offender will have rendered such significant assistance to the WAP in an investigation as to warrant a letter from the WAP to the Court advising the nature of the assistance.
147.In order to have substantial mitigating effect, the assistance should extend beyond the investigation of the criminal enterprise in respect of which the person has been convicted.
148.To ensure that the assistance merits the unusual action of a letter to the Court, and the consequent effect on sentence, such letters may only be presented when sanctioned by the Director or Deputy Director who in turn will only accept such letters from the Commissioner, Deputy Commissioner, Assistant Commissioner (Crime) or District Superintendent or Assistant Commissioners North Metropolitan, South Metropolitan and Regional Western Australia or their Federal Counterparts.
The proper exercise by a court of its function in sentencing an offender must not be constrained by the decision of the Director of Public Prosecutions or the police about whether in a particular case a 'letter of comfort' or a 'letter of recognition' will be given. This filtering outside the court process must not interfere with or affect the capacity of a sentencing judge properly to determine, for sentencing purposes, the nature, extent and value of an offender's cooperation and the extent of any discount to the sentence that would otherwise be imposed. All relevant facts and circumstances are to be placed before the court, desirably with the form and content having been previously agreed between the offender's counsel and the office of the Director. An offender's counsel should inform the office of the Director as soon as practicable before the sentencing hearing of any contention that the sentence should be reduced on account of cooperation with the law enforcement agencies.
It is apparent from the information which the State has put before this court that the appellant provided substantial information and assistance to investigating police officers. He appears to have done so voluntarily and in good faith. The cooperation commenced on the night of the appellant's arrest and continued for a reasonable period of time. The appellant provided this assistance without knowledge of what information, if any, was already held by the police. Although the police were, in fact, aware of virtually all of the material made available by the appellant, it is reasonable to infer that the appellant's cooperation was of some value in corroborating data and other intelligence held by them.
Drug dealing is a scourge in modern society. It causes human degradation, harm and misery and consequent damage to the community as a whole, as well as to the individuals who are directly affected by it. The consumption of illicit drugs is a cause of or relevant to a very significant proportion of the criminal conduct which is dealt with by this and other courts. Accordingly, there is a public benefit in encouraging offenders to cooperate with law enforcement agencies in the detection, apprehension and prosecution of others involved in drug dealing, irrespective of the personal motivation of the informer.
In the present case, counsel for the State accepted that the assistance given by the appellant to police warranted a discount on his sentence. It was submitted, however, that the sentence actually imposed by the sentencing judge gave an appropriate discount. According to counsel, there was no demonstrable error in the exercise of his Honour's discretion.
In my opinion, the sentence imposed by the sentencing judge is manifestly excessive when proper regard is had to the appellant's cooperation, as revealed by the information put before this court. As I have mentioned, the information given to the sentencing judge was inadequate. I infer from the sentencing outcome that his Honour did not allow even a modest discount, but merely took into account, in a general way, the provision by the appellant of some non‑specific assistance which did not warrant a 'letter of comfort' or a 'letter of recognition'.

As I have mentioned, it is apparent that the appellant provided substantial information and assistance to investigating police officers; he appears to have done so voluntarily and in good faith; the cooperation extended over a reasonable period; and his cooperation appears likely to have been of some value in corroborating data and other intelligence of which the police were already aware. Also, it is relevant that in cooperating with the police the appellant is likely to have exposed himself to the risk of retribution from others involved in the illicit drug dealing industry, with obvious consequences for his personal safety within the prison system and after his release. Further, the appellant's cooperation, in combination with his fast‑track plea of guilty and his ready acceptance of responsibility for his offending, indicates that he may have made some real progress towards rehabilitation.

Ground 1 of the appeal: conclusion

Ground 1 of the appeal has been made out.

Ground 2

It is unnecessary, in the circumstances, to deal with ground 2.

The result of the appeal and the appellant's resentencing

I would allow the appeal. This court has the material necessary to resentence the appellant. The seriousness of the offending requires the imposition of a term of immediate imprisonment. No other sentencing option is open.
In my opinion, the overall criminality of the appellant's offending, after having regard to the maximum available sentence, the standards of sentencing customarily observed, the place which his criminal conduct occupies on the scale of seriousness of offences of this kind, and the personal circumstances of the appellant, including his cooperation with the police, requires a sentence of 5 years' immediate imprisonment. The sentence should be taken to have commenced on the date on which the sentence imposed by the sentencing judge commenced. The appellant should remain eligible for release on parole. He will be eligible for release upon serving 3 years calculated from the date of commencement.
The sentence I would impose has been discounted by the percentage specified in the schedule to these reasons to reflect the appellant's cooperation with the police. All of the cooperation was past cooperation as at the time of the hearing before the sentencing judge. None of it involved promised future cooperation.
MAZZA J: I agree with McLure P and Buss JA that this appeal should be allowed and that the sentence to be imposed upon the appellant should be reduced to the extent proposed by Buss JA.
The facts of the case are set out in the confidential annexure to Buss JA's reasons. The relevant portions of the transcript of the sentencing proceedings are included in the main body of those reasons. The grounds of appeal relied upon by the appellant are:
1.The learned sentencing Judge erred in the exercise of his sentencing discretion by imposing a sentence that was manifestly excessive in all the circumstances, including the offending conduct viewed as a whole and with insufficient regard to matters personal to the Appellant.
Particulars
1.1 The Appellant was [X] years old and had no prior record.
1.2The Appellant pleaded guilty on the fast track and should have been afforded a discount of between 25 ‑ 35%.

1.3The Appellant provided assistance to the authorities, with it being recognised that such assistance may afford consideration of a discount of up to 50%.
1.4The personal antecedents of the Appellant.
1.5The fact that the Appellant was satisfying a drug debt.
1.6The Appellant had commenced his own rehabilitation.
1.7There was no evidence to suggest ongoing drug dealing.
1.8Sentencing authorities suggest that the sentence imposed by the Learned Sentencing Judge was above the range commonly imposed for like offending.

2.The learned sentencing Judge erred in the exercise of his sentencing discretion by failing to give any consideration to the Appellant's assistance to Police. His failure to enquire in regards to the particulars of the Appellant's assistance preventing him from assessing whether a significant discount of up to 50% should have been afforded to the Appellant. Further, the learned sentencing Judge erred in not enquiring as to why the Director of Public Prosecutions would not present a letter of comfort to the Court, as had been promised to the Appellant by the Police.

Neither ground really captures what occurred in this case.
Having regard to the information that was provided to the sentencing judge, the sentence he imposed was not manifestly excessive. The circumstances of the offending were very serious. The appellant was found in possession of a large quantity of ecstasy with a relatively high purity. His intention was to sell a significant amount of that drug. Despite all the mitigating factors, a substantial term of immediate imprisonment was warranted in order to achieve general deterrence. The sentence that was imposed by his Honour was consistent with the standards of sentencing customarily imposed for offences of this type.
In my opinion, the second ground of appeal wrongly alleges several express errors on the part of the sentencing judge.
Contrary to what is said in this ground of appeal, his Honour did not fail to give any consideration to the appellant's assistance to the police. His Honour expressly considered the matter and gave some mitigatory weight to it.
The ground then criticises his Honour for failing to make enquiries about 'the particulars of the Appellant's assistance' and 'why the Director of Public Prosecutions would not present a letter of comfort to the Court'.
The answer to these criticisms is that his Honour was not asked to make these enquiries, nor was he required to make them. The appellant was represented by experienced counsel who was content for the appellant to be sentenced on the facts then before the sentencing judge. His Honour was entitled to assume that all relevant factual matters were before him and that he could proceed to sentence the appellant.
What occurred in this case is that the sentencing judge was not given sufficiently detailed information about the appellant's co‑operation. That was the responsibility of the parties. This court has been provided with further evidence which details the appellant's co‑operation. The court has the power to admit such evidence pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA). Having read that information, it is clear to me that greater mitigatory weight should have been given to the appellant's co‑operation. I am satisfied that the reduction proposed by Buss JA appropriately reflects the weight that should be given, in the interests of justice, to the appellant's co‑operation.
Some matters became apparent during the hearing of this appeal which require comment.
Both McLure P and Buss JA have referred to guidelines 146, 147 and 148 in the Statement of Prosecution Policy and Guidelines 2005. Those guidelines do not accurately reflect the sentencing principles relating to the mitigatory weight to be given for co‑operation. It is not for the DPP or the police to decide whether an offender's co‑operation warrants mitigatory weight. That is, of course, a matter for the court to decide. Contrary to what is stated in guideline 147, co‑operation given in the investigation of the criminal enterprise, in respect of which an offender has been convicted, is capable of providing mitigatory weight. These guidelines require, in my opinion, revision and correction.
Next, because of the public policy considerations which exist in this area and the need to preserve the safety of offenders who assist police, the police, the DPP and the offender must use their best endeavours to ensure that courts are provided with all the relevant facts relating to an offender's co‑operation. This requires the issue to be raised by an offender's legal advisers in a timely manner before sentencing. The DPP should then make enquiries with the police. It is expected that the police would have no objection to providing the DPP with any mitigatory information. Once gathered, that information should then be conveyed to the offender's legal advisers and the court.
The form in which the information is conveyed may be a letter of comfort, or its modern day equivalent a letter of recognition, signed by a high‑ranking police officer. However, in cases where such a letter is not forthcoming, a statement of agreed facts setting out the particulars of the offender's actions should be produced.
Only in rare cases, after all avenues to agreement have been explored and exhausted, should there be a trial of the issues on the question of an offender's co‑operation.
The Director of Public Prosecutions said during his oral submissions that his office was developing protocols with the WA Police and the Law Society of Western Australia concerning letters of comfort. In my opinion, this is an encouraging development.
The information that was provided to this court about the appellant was in accordance with a draft protocol between the DPP and the WA Police. In that form, the information was of considerable assistance in enabling this court to assess the co‑operation provided by the appellant.